State ex rel. Slabaugh v. Vinsonhaler
| Decision Date | 19 October 1905 |
| Citation | 74 Neb. 675,105 N.W. 472 |
| Parties | STATE EX REL. SLABAUGH, COUNTY ATTORNEY, v. VINSONHALER, COUNTY JUDGE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The tax provided for in the inheritance tax law so called (chapter 54, p. 414, Laws 1901, as amended, Cobbey's Ann. St. Supp. 1905, § 10,706), is not a property tax, but upon the right of succession to property by inheritance or will.
The enumeration of subjects of taxation in section 1, art. 9, of the Constitution, is not exclusive. The Legislature has power to provide for taxation upon inheritances.
The act does not require the tax to be levied upon the property constituting the whole estate of the decedent, but upon the share that each heir or devisee takes therein.
Application by the state, on the relation of W. W. Slabaugh, county attorney of Douglas county, for writ of mandamus to Duncan M. Vinsonhaler, county judge. Writ allowed.W. W. Slabaugh and Charles E. Foster, for relator.
Geo. E. Pritchett, for respondent.
Crofoot & Scott, amici curiæ.
The respondent, as county judge of Douglas county, refused to appoint an appraiser in the matter of the estate of Frank Murphy, deceased, pursuant to the inheritance tax law. Laws 1901, p. 414, c. 54, as amended in Cobbey's Ann. St. Supp. 1905, § 10,706. This is an application for a writ of mandamus to compel the appointment of such appraiser. The defense is that the law is unconstitutional.
1. The first question presented is whether the tax provided for in this legislation is a tax on property. Section 1 of article 9 of the Constitution requires that taxes on property must be levied by valuation, and that the tax exacted from each person and corporation must be in proportion to the valuation of the property taxed. The act in question provides for a varying rate of taxation, depending upon the degree of relationship of the heir or devisee, and upon the amount received from the estate by him. If, therefore, the tax in question is to be regarded as a tax upon property, the legislation cannot be upheld. It appears to be almost uniformly held that, if the tax is laid upon the amount received from the estate by the heir or devisee, it is a tax upon the right of succession to property; that is, upon the right to receive the property from the estate of the decedent, and not upon the estate itself. Magoun v. Bank, 170 U. S. 283, 18 Sup. Ct. 594, 42 L. Ed. 1037.
2. Indeed, this appears to be conceded by the respondent, and the principal argument is upon the following question involved in the construction of section 1 of article 9 of the Constitution: That section is as follows: “The legislature shall provide such revenue as may be needful by levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her or its property and franchises, the value to be ascertained in such manner as the Legislature shall direct, and it shall have power to tax peddlers, auctioneers, brokers, hawkers, commission merchants, showmen, jugglers, innkeepers, liquor dealers, toll bridges, ferries, insurance, telegraph and express interests or business, venders of patents, in such manner as it shall direct by general law, uniform as to the class upon which it operates.” It is said in the brief of the respondent: The federal Constitution is a grant of power to the federal government, but the state Constitutions are restrictions upon the general power of Legislatures. State v. Nelson, 34 Neb. 170, 51 N. W. 648;Hanscom v. Omaha, 11 Neb. 37, 7 N. W. 739;Magneau v. Fremont, 30 Neb. 852, 47 N. W. 280, 9 L. R. A. 786, 27 Am. St. Rep. 436. It is insisted that the section of the Constitution under consideration must be construed to limit the taxing power of the Legislature to the subjects named therein.
It is urged with great force, and, it must be admitted, with some reason, that the language of the section itself requires such construction. The command of the Constitution is that the Legislature shall provide needful revenue, and this command is followed immediately by a provision as to how such revenue shall be provided, to wit: “By levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her, or its property and franchises.” Then follows an enumeration of subjects of taxation, upon which the Legislature may lay taxes “in such manner as it shall direct by general law.” These exceptions are introduced by the words “and it shall have power.” These words, it is urged, show the manifest intention of the Constitution to deny the power to the Legislature of taxing any other subjects than those named in the Constitution. The Legislature must provide needful revenue. It must do this by valuation, except that it shall have power to tax some specified subjects by another method. To this reasoning it is answered that the Legislature must necessarily determine the meaning of doubtful provisions of the Constitution defining or limiting its power, and that, when a provision of the Constitution is susceptible of a construction that will justify the legislation attacked, the Legislature will be presumed to have adopted that construction, and its action will be upheld. It is also answered that the matter has been determined by prior decisions of this court. In State v. Lancaster County, 4 Neb. 537, 19 Am. Rep. 641, it is said in the third paragraph of the syllabus: “The maxim ‘Expressio unius est exclusio alterius' does not apply in the construction of constitutional provisions regulating the taxing power of ...
To continue reading
Request your trial
-
In re Peterson's Estate
...10 N. E. 685, 58 Am. Rep. 502;Nunnemacher v. State, 129 Wis. 190, 108 N. W. 627, 9 L. R. A. (N. S.) 121, 9 Ann. Cas. 711;State v. Vinsonhaler, 74 Neb. 675, 105 N. W. 472;In re Wilmerding, 117 Cal. 281, 49 Pac. 181;Magoun v. Illinois Co., 170 U. S. 283, 18 Sup. Ct. 594, 42 L. Ed. 1037;Minot ......
-
In re Peterson's Estate
...Union Trust Co. v. Durfee, 84 N.W. 1101; In re McPherson, 10 N.E. 685; Nunnemacher v. State, 108 N.W. 627 Wis. 9 Ann. Cas. 711; State v. Vinsonhaler, 105 N.W. 472; re Wilmerding, 49 P. 181; Magoun v. Ill. Tr. & Svgs. Bk., 170 U.S. 283, 42 L.Ed. 1037, 18 S.Ct. 594; Minot v. Winthrop, 38 N.E.......
-
Krug v. Douglas County
...by the executor of the will of Mr. Krug. The tax so paid was upon his widow's right of succession to property by will. State v. Vinsonhaler, 74 Neb. 675, 105 N.W. 472; In re Estate of Rudge, ante, p. 335. It also that the property which Mrs. Krug had acquired under the will of her husband p......
-
Lincoln Trust Co. v. Lancaster Cnty. (In re Rudge's Estate)
...and not for gain or profit, then the ruling of the lower court would be wrong; but this court has heretofore held in State v. Vinsonhaler, 105 N. W. 472, 74 Neb. 675, that an inheritance tax is not a property tax, but one upon the right of succession. It is, in fact, an excise tax upon a ri......
-
Neb. Const. art. VIII § VIII-1 Revenue; Raised By Taxation; Legislative Powers
...tax law sustained as tax upon right of succession of property and not tax upon property of estate. State ex rel. Slabaugh v. Vinsonhaler, 74 Neb. 675, 105 N.W. 472 Word "property" includes all intangible property of whatever description including franchise, and all physical or tangible prop......